(b) The conduct of the unsuccessful defendant, the Council
80In respect of the Council's conduct, the Court of Appeal considered in Bostik Australia Pty Ltd v Liddiard (No 2), supra, at [29]:
"The requirement that a party's conduct is relevant to determining whether a Sanderson order should be made is not a requirement that the party engage in misconduct. Rather, it is whether, given its conduct, it is fair to impose such an order on it."
81The issue as to the conduct of the unsuccessful defendant (in these proceedings, the Council) is a matter, as discussed above, that is material in determining whether to make a Bullock or Sanderson order was considered by Priestley JA and Santow AJA (as his Honour then was) in Almeida v Universal Dye Works Pty Ltd (No 2) [2001] NSWCA 156. The considerations in that case are instructive.
82The analyses in that case focused upon observations made in Sved v Council of the Municipality of Woollahra (1998) NSW Conv R 55-842 at 56,605. In that case, Giles J (as his Honour then was) observed that:
"... the conduct of the unsuccessful defendant must have been such as to make it fair to impose some liability on it for the costs of the successful defendant, or that the conduct of the unsuccessful defendant must show that the joinder of the successful defendant was reasonable and proper to ensure recovery of the damages sought." (emphasis added)
83His Honour also observed:
"...The difference in formulations is probably more apparent than real, as reasonableness as between the plaintiff and the unsuccessful defendant will normally be demonstrated by some conduct of the unsuccessful defendant which made it proper that the successful defendant be joined or that the unsuccessful defendant should bear the costs of the successful defendant. Such conduct was found in Lackersteen v Jones (No 2) in the successful defendant denying the authority of its agent whereby the plaintiff joined the agent who became the successful defendant ..."
84In Almeida v Universal Dye Works Pty Ltd (No 2), Priestley JA examined the question of "conduct" that is relevant to the making of a Bullock or Sanderson order. His Honour took a broad view and stated:
"... In my view any conduct by the defendant or state of affairs in which the defendant is an integral part which makes it fair and reasonable for other parties to be joined as defendants will be relevant to deciding on fair costs orders ..." (at [8])
85In that case it was noted that the plaintiff faced the task of proving who had been the occupier of the factory roof in question, either in an undefined sense or in a statutory sense. There was doubt as to the identity of the occupier and hence additional parties were joined. Priestley JA further observed:
"... the questions of occupation and whether Universal was the head contractor were put in issue by Universal. This alone would in my opinion have been sufficient conduct on the part of Universal to warrant the making of the orders against it which Mrs Almeida now seeks." (at [13])
86In his judgment, Santow AJA observed:
"[32] In order for a Bullock order to be made in favour of a plaintiff against an unsuccessful defendant, the conduct of that defendant must have been such as to make it fair, as between plaintiff and unsuccessful defendant, to impose some liability on it for the costs of the successful defendant; see Gould v Vaggelas (1984) 157 CLR 215 per Gibbs CJ at 565-6. Brennan J (at 579) formulated the test in these terms: 'the conduct of the unsuccessful defendant in relation to the plaintiff's claim against him showed that the joinder of the successful defendant was reasonable and proper to ensure recovery of the damages sought'. This formulation requires not only fairness in the sense of what is proper, but also reasonableness. It focuses on the joinder of the successful defendant.
[33] However, I do not understand that focus on joinder excludes from consideration relevant conduct pre-dating joinder. This is so long as that conduct is relevant to the fairness, or reasonableness, of making a cost order against the unsuccessful defendant.
[34] Thus both judgments make clear that it is not enough for the plaintiff to show in the abstract that such an order be reasonable and proper. There must also be some sufficient element in the conduct of the unsuccessful defendant which makes it reasonable and proper to join the successful defendant (Brennan J) or fair for such a cost order to be made against the unsuccessful defendant (Gibbs CJ).
[35] That conduct of the unsuccessful defendant must be 'in relation to the plaintiff's claim against him' (per Brennan J in Gould v Vaggelas (supra) at 579). From that proposition one would expect the conduct ordinarily to relate to the way the unsuccessful defendant conducted its defence, taking account of any claim between the defendants inter se."
87Later in his judgment, his Honour stated that he would not agree that "conduct" in the sense used by Giles J in Sved v Council of the Municipality of Woollahra has as narrow an ambit as was contended for in that case by Universal. Santow AJA stated that he would consider it relevant in that regard that the unsuccessful defendant's conduct in denying that it was the head contractor would encourage a rational plaintiff, it was observed, to sue the other respondents: at [38].
88Finally, his Honour observed at [39], that he would differentiate "conduct" from a purely passive state of affairs where the latter merely provides context for appraising any actual conduct that bears on fairness. His Honour observed"
"...In making that distinction, I would acknowledge that conduct can include deliberate acts of omission, so that the distinction between conduct and context is not always clear-cut."
89Accordingly, in Almeida v Universal Dye Works Pty Ltd (No 2), the conduct of the first respondent in denying that it was the head contractor was such as to justify the Bullock order sought by the appellant once considered in the factual context that arose in that case.
90I now turn to the evidence relevant to the application for the Bullock or Sanderson order in the present proceedings.
91Mr Walsh, solicitor for the plaintiff, swore an affidavit on 21 November 2013 which was, in part, evidence relied upon in support of a Bullock order against the Council. Mr Walsh relied upon matters contained within his earlier affidavit sworn on 26 October 2010 in respect of the Notice of Motion seeking to join the Club to the proceedings.
92It is unnecessary here to set out all of the matters which Mr Walsh refers in his later affidavit in paragraphs [7]-[23]. I have, of course, closely considered those paragraphs. Mr Walsh referred to evidentiary statements of James Garcia, a cleaner that had been employed as a contractor by the Club as well as an evidentiary statement of the General Manager of the Club, Keith Langelaar. Mr Walsh stated that none of those statements mentioned what he refers to as "any rationale about when and why the gate was to be opened": at [9].
93Mr Walsh additionally referred to a statement of Mr Pintara Lay dated 22 October 2010 which was served by the Council: at [11].
94In paragraphs [12] and [13] of Mr Walsh's later affidavit the issue as to whether or not there had been delegation by the Council to the Club was addressed in terms as to whether or not interpretation of Mr Lay's evidentiary statement as to the opening and closing of the gate across a local or public road was to be understood or interpreted as indicating that there had been an inadequate delegation of the Council's function in respect of the care, control and management of the road or whether or not it was open to the "interpretation" that there had been an effective delegation such that any negligence in the operation of the boom gate lay with the Club.
95Mr Walsh stated at [13] of his later affidavit that he adhered to his state of belief that it was possible that the Club was instructed in the manner that constituted a more formal delegation as to why the gates needed to be opened and closed at certain times and that it embraced that responsibility. Documentation on such matters, it was said, fell within paragraph [5] of the subpoena that had been served on the Council but that, to the best of his knowledge and belief, no documents as sought in that paragraph had been produced as to the issue to which he referred.
96Mr Walsh then stated at [17] of his later affidavit that he maintained the view he expressed in his affidavit of 26 October 2010 that there was a real issue as to whether the Council had effectively delegated to the Club the opening and closing of the boom gate and that he adhered to his "stated belief".
97He also referred to evidence concerning the operation of the gate, including, in particular, Mr Lay's evidence which Mr Walsh said confirmed his belief that the Council had maintained that it delegated the operation of the gate: at [20]-[21].
98Finally, Mr Walsh relied upon what he said was his understanding that, as to the issue of the delegation of the opening and closing of the boom gate, it had been disputed by the Council.
99I have earlier referred to the affidavit evidence of Mr MacLennan, solicitor for the Council, affirmed on 1 November 2010 and relied upon by the Council in opposing the application to join the Club to the proceedings. At paragraph [11], Mr MacLennan stated:
"Rockdale City Council opposes the joinder of St George Sailing Club for two reasons:
(a)First, the plaintiff's claim against the Club is so weak as to not to warrant the joinder;
(b)Second, such a joinder would jeopardise the hearing date and essentially delay any later one allocated with the St George Sailing Club as a party."
100In paragraph [53], Mr MacLennan stated in relation to his statement in paragraph 11, that he based that statement on two matters:
"(a) First, as solicitor for Rockdale, I investigated the potential involvement of other parties, so that cross-claims seeking contribution could be considered. I investigated the role of St George Sailing Club, and formed the opinion (apparently similar to the opinion of the plaintiff's original Senior Council) that it is extremely unlikely that the Club could be found liable for the plaintiff's accident.
(b) Second, I draw the court's attention to the way in which the plaintiff proposes to plead his case against St George Sailing Club. The only basis for a claim against the Club is that it had "the care, control and management" and "responsibility for the opening and closing" of the gate. I do not believe that these allegations can provide the basis for a successful claim. The "negligence" particularised seems to bear out the difficulty in pleading a realistic claim against the Club."
101The issue as to whether there had been an effective delegation by the Council was, as earlier noted, addressed in the Council's Submissions on Costs at [7] and [8]. In the latter paragraph it was stated that there was no evidence to support the first assertion, namely, that the Council had actively informed the plaintiff or his representatives that there had been a delegation, whether formal or informal, of the authority to operate the gate to the Club. The Council maintains on the present application that there was no evidence to support that assertion and that Mr Walsh did not refer in his affidavits to such correspondence. In that respect reliance was placed upon Ms Morgan's affidavit at [3].
102I have endeavoured to identify any "conduct" by the Council that would justify, that is to say, would properly support, an exercise of the discretion to make a Bullock or Sanderson order. I have considered the evidence to determine whether there was any active conduct or relevant failure to inform the plaintiff's solicitors on a matter that could be said to have operated or induced or left the plaintiff with no alternative but to join the Club. Such an inquiry is one to be made against the background and in the context of relevant matters including the question of a possible delegation, formal or otherwise, of functions or responsibilities by the Council to the Club.
103I have concluded that there is no basis for a finding that there was relevant conduct by the Council such as to make it fair to impose some liability on it for the costs of the successful defendant, the Club. I do not consider that the Council's conduct could be said to have induced or misled the plaintiff or his advisors on the issue of delegation, or no delegation, or upon any other issue material to the joinder of the Club. As the authorities make plain, these questions involve issues of reasonableness as between the plaintiff and the unsuccessful defendant. I am unable to discern any conduct by the Council that would make it reasonable for a Bullock or Sanderson order to be made against it and, accordingly, I decline to make such an order.